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Enacting a Construction Sales Process: Make Time for Sales to Have Sales

in Marketing/Sales

By TOM WOODCOCK

Contractors often must wear many hats – everything from estimating to project managing, vendor relations and, oh yeah, selling.

The selling part can often be an afterthought. The problem is that it needs forethought. Not allotting time and strategizing to sell can cripple a construction firm. Instead of trying to reshape an entire construction firm’s approach to sales, I often find it more effective to increase the level of efficiency and time usage. This is a process, but once enacted it produces opportunity.

My biggest challenge is to convey cause and effect, as many contractors tend to be a point A to point B types of thinkers. Sales rarely flows in that fashion. But if you practice the basics efficiently and consistently, results follow. The first step is to allot a percentage of time consistently to selling. This will require looking honestly at the amount of time you currently commit and what you can realistically designate for sales. Whether it’s a percentage of time or actual hours, start where you are, increase that number a bit and stick to it. A weekly total is most desirable.

The next level is to determine what to do with that time. What will get you the most bang for the buck? What actions will get you in front of more clients and potential customers? What is the quality of that contact time? This may sound daunting, but if you put a little effort into it, you’ll save time in the future.

Analyze which associations are most effective in generating opportunity. Which of the events you normally attend produce leads and relationships? Of the current relationships you have, which afford quality business opportunities? Invest time in these areas and reduce time in those that are nonproductive. Remember, you’re busy and you have other responsibilities. Sacrifice the more hit-or-miss opportunities that are out there. On a side note, make sure those other responsibilities are worth sacrificing any type of sales time to at all.

After you have time allotment laid out and know where you’re going to get in front of people, you need some preliminary marketing. The quickest, least expensive option is electronic marketing. But even in this realm, you still need to use your time efficiently. Hitting every aspect of social media can be alluring and trendy; however, realistically investing quality time into one avenue is best. Becoming consistently active on LinkedIn by joining the proper customer groups, connecting with industry professionals and searching for high-caliber networking functions should suffice – at least as far as social networking goes. Tie that activity to a monthly electronic newsletter properly designed and produced, and you have an effective platform.

Now you’re set to implement. Ah, there’s the rub. It’s far easier to get a company to strategize its approach and another to get it to diligently implement the plan. Even though we’re being respectful of all the other responsibilities that professionals have, still, many tend to put sales on the back burner. Effort cannot be structured into a strategy. It either exists or doesn’t.

Practicing efficient sales time usage will help with your corporate sales results, but true dedication to your firm’s sales dynamic always produces. Efficiency is effective, and yet a high level of time committed to a sales effort trumps efficiency – even if it’s not as effectively managed as a smaller, tighter effort.

There’s a principle in sales that holds true: If you’re out amongst people more, you’ll discover more opportunity. Projects come from unique leads, and introductions can be made to stronger network contacts. Creativity can be invoked in the sales approach, resulting in greater attention or differentiation. This larger type of time commitment is very rare in the construction industry. It’s usually inherent within larger contractors whose firms can afford specific business development and marketing personnel.

The final stage in this process is to continually evaluate what is producing the best results. Adjust your time commitment to those areas and expand their impact. Take actions producing good results and develop them into producing even greater success. Discontinue actions that are not producing sales opportunity, and you now have a formula for growing greater results. Of course, your efforts will eventually hit an artificial ceiling in terms of how much time you’re able to allot. The decision at that point will be to 1) stay put and maintain your new status quo, or 2) adjust the level of time your company commits to sales work. This is a good problem to have. It’s one that takes companies to the next level in revenue and profitability.

Construction is a hands-on industry. It’s filled with individuals who take complex plans and turn them into projects. Sales can be a foreign concept that is too often practiced on an as-needed basis. If the same amount of planning goes into a sales approach, quality results should be the expectation. The efficient usage of time relevant to sales can solidify a revenue base, not to mention increase overall profits. The old adage “time is money” must’ve been coined by a sales individual…if you consider Benjamin Franklin a sales rep.

Tom Woodcock, president of seal the deal, is a speaker and trainer for the construction industry nationwide. He can be reached via his website,  www.tomwoodcocksealthedeal.com, or at (314) 775-9217.

Eighth Circuit Court of Appeals Vacates $6 Million Jury Verdict Against Title Company on Mechanics’ Liens at Lake Condo Project

in Law
James R. Keller

By JAMES R. KELLER

The Eighth Circuit Court of Appeals recently vacated a jury verdict of $6 million in favor of a lender and against the title insurance company on a construction loan. The parties face a new trial with a different jury in federal court in St. Louis on this 13-year-old project.

The case is Captiva Lake Investments, LLC v. Fidelity National Title Insurance Co., 883 F.3d 1038 (8th Cir. 2018). This is a significant opinion about Missouri law from the nation’s second-highest court on construction lending, insurance coverage and mechanics’ liens.

The construction project was a condominium development at the Lake of the Ozarks in Sunrise Beach, MO that started in 2005.

National City Bank of the Midwest had loaned Majestic Pointe Development Co., LLC $21,280,000. National purchased title insurance for the project from Fidelity National Title Insurance Co.

Partway through construction, Majestic defaulted on the construction loan and went bankrupt. Captiva Lake Investments, LLC bought National City’s ownership interest in the project. Various contractors and subcontractors filed mechanics’ liens against the property.

Captiva (the lender) sued Fidelity (the title company) in 2009 asking Fidelity to protect Captiva on the mechanics’ liens. Fidelity agreed to defend Captiva under a reservation of rights. In turn, Fidelity sued Captiva alleging there was no coverage for the mechanics’ liens.

A reservation of rights is not unusual in the insurance industry. In this case, it meant that Fidelity would provide and pay for the defense of the lawsuit; it reserved the right to later disclaim there was insurance coverage.

Fidelity based its reservation on a specific exclusion contained in the title policy it had issued. The exclusion excluded from coverage claims based on liens that were “created, suffered, assumed or agreed to by the insured claimant.” In this case, that was Captiva.

After some procedural maneuvering in court, Captiva became the plaintiff in its claim against Fidelity for insurance coverage. The facts and claims are complicated.

The trial court judge did not allow Fidelity to present its exclusion defense to the jury.  The judge determined that there had to be evidence of intentional misconduct or inequitable dealings by National City (the original lender) to advance that defense, and there was no such evidence.

The Eighth Circuit noted “construction lending can be risky.” In case of bankruptcy, the lender’s loan is only protected by the unfinished project, “which is often worth far less than the money put into it.”

Title insurance protects the owner and insurer against defects in title that already existed before the date of the policy. It generally does not protect from events that occur after the date of the policy.

In this case, the title insurance policy was a standard 1992 American Land Title Association (ALTA) lender’s title policy. ALTA writes industry-standard policy forms that are used nationwide.

Fidelity issued the policy after the work had begun. Fidelity agreed to the lender’s deletion of standard policy language that excluded from coverage mechanics’ liens.

This created a risk to the title company that mechanics’ liens might be covered by its policy and that the liens might be given priority over Captiva’s deed of trust for the construction loan.

Missouri law gives priority to mechanics’ liens to protect unpaid contractors, subcontractors and material suppliers. These project partners may be the first in line to be paid before others, including the lender – even a lender whose loan predated any recorded mechanics’ lien. This depends in part on when the work first started in relation to the date of the construction loan.

This priority encourages those trades farther down the food chain to work. Otherwise, some would argue that nothing would get done on a construction project without up-front payment.

Since at least 1855, Missouri has followed the first-spade rule. This rule provides that the first day of work by any contractor, subcontractor or supplier is the operative first date of work for all of them as far as mechanics’ liens are concerned. The liens of all of them – no matter when filed (as long as timely filed) – revert for priority purposes to that first date.

If that date is before the date of the filing of the construction loan, all mechanics’ liens have priority over that lender. In this case, mechanics’ liens were filed after the date of the loan – but at least some of the work apparently preceded that date.

The Eighth Circuit stated that evidence was not presented to show that any work done before the policy date became part of a later lien.

Captiva did not provide any legal authority that applying the first-spade rule was determinative of whether unresolved mechanics’ liens rendered a title unmarketable.  Coverage for a title that is unmarketable allows the insured to be indemnified when there is a title defect that existed prior to the date of the policy.

There was another consideration in this case, however, besides mechanics’ lien priority and the first-spade rule.

The Eighth Circuit concluded that the jury should have been allowed to consider the lien exclusion contained in the policy without needing to find intentional misconduct or inequitable dealings by National City.

National City may have “allowed” or “suffered” the liens when it stopped funding the project. The general contractor – Kidwell Construction, Inc. – paid itself about $681,000 of a $1 million fee. This money was supposed to be deferred until the construction loan was repaid.

The schedule of values revealed there were insufficient funds to pay for finishes and site improvements. These events caused National City to stop funding the loan, leaving $1.2 million unpaid from the original loan.

Such evidence could persuade a jury that the “allowed” and “suffered” exclusion should apply, thereby releasing the title company from coverage even though the general exclusion for mechanics’ liens was not in the policy.

James R. Keller is counsel with Sandberg Phoenix & von Gontard P.C. where he concentrates his practice on construction law, complex business disputes, real estate and ADR. He also is an arbitrator and a mediator. Keller can be reached at (314) 446-4285 or jkeller@sandbergphoenix.com.

Relationship is to Sales what Messaging is to Marketing

in Marketing
Stephanie Woodcock

Good salespeople know the importance of relationships to sales and long-term success. Good marketers know the importance of messaging and the brand that supports that message.

There is a reason it’s called marketing and sales. They are two different things.  Marketing needs to create a message Sales believes in. Sales needs to help convey the message that is reflected in Marketing. In addition, Sales should also share input as to what the marketing message is, so that he can reinforce the message. Each department needs buy-in and the sharing of internal marketing needs to occur to get companywide buy-in. When the system is working correctly, Marketing generates leads and Sales follows up and closes.

With a cohesive email marketing campaign and marketing automation tools, B2B (business-to-business) companies can close the gap between marketing and sales by consistently nurturing prospects with helpful content and creative, concise branding. Buyer behaviors are changing. B2B marketers must communicate with buyers in new ways and create content marketing that answers questions, provides market insight and is personalized to the customer’s role, needs and level of interest.

One major change is that buyers do more research on their own. They investigate solutions on their own and discuss with peers before engaging vendor sales reps. Sales cycles start with the email campaign of the marketing department, and the message is key. The marketing team is tasked with developing a message and content that educates while it sells.

Too many times, marketers use existing content to power lead-nurturing campaigns but find that the content consists mainly of product brochures, technical white papers and press releases. Pushing this kind of technical content that does not have an underlying message pushes prospective clients away. Buyers have a low tolerance for commercial messages that sell first. The key is to engage buyers with a creative, cohesive message before selling your wares.

Marketers need to create a relationship, just like sales, between their brand and the leads they want to nurture. They need to create email campaigns that entice clients to open and click through for more information. New, educational content for these marketing campaigns can be culled through resources within the company. Sales, engineers, estimators and customer service personnel can add valuable, raw content for marketing to craft into a cohesive message.

Once the brand and message has been established, sales can use this as a starting point, engage these nurtured leads and continue the relationship and sales cycle.  One needs the other. Neither Sales nor Marketing should be operating alone. When married, the “whole is greater than the sum of its parts.” When Marketing and Sales are working toward the same goal, that synergy drives motivation, company culture and sales. It also increases more than the bottom line. It creates a culture of customer service, client relationship and client loyalty.

The marriage of both departments proves that while every company needs sales to drive revenue, they need marketing, too.

Stephanie Woodcock is president of Seal the Deal Too, a St. Louis-based marketing, creative & communications firm. She can be reached at stephanie@sealthedealtoo.com.

Let’s Get Married! How Sales & Marketing Should Operate Together

in Marketing
Stephanie Woodcock

When meeting with clients, one important topic is how we, as a marketing team, plan to drive sales, engage the sales team and better measure our efforts. How do we marry sales and marketing? How do we create a long-lasting, meaningful relationship between the two departments that not only increases sales but also engages the company’s internal resources?

In many companies, the sales and marketing departments are still only dating and haven’t fully committed to each other.

Here’s a sample scenario: Sales pops into Marketing’s office unannounced and asks (pleads):

  • Do you have a flyer for this product?
  • Can you create some brochures for this trade show?
  • Can you work up a PowerPoint presentation for a new client meeting that I have tomorrow?
  • I need 25 of those polo shirts you ordered, like now.

Many times, these unexpected but welcome requests are time-sensitive, top priorities. Marketing rises from her desk and scrambles around trying to make Sales happy. They put aside their long-term projects and quickly (but lovingly and willingly) try to put a sales package together that doesn’t look like it was assembled five minutes ago. There is no real cohesion, strategy or underlying message between Sales and Marketing. They haven’t said their vows yet.

Another scenario that occurs is when Sales and Marketing haven’t even met yet and they are still going about their business as singles, with no inkling that they need each other. This is actually worse than the former scenario because there is no marketing message to support the sales effort. Sales is on its own, using material that he generated on his own, and he is basically relying on his skill, talent and likeability to generate business.

We love you, Sales. We love your passion, your tenacity and your ideas. We want you knocking down our door to get our marketing materials. We want to meet your needs and help you “bring home the bacon.” But in order to truly meet those needs, we need a plan. We need you to “put a ring on it” and together we need to commit to a long-term marketing message and strategy. Then we need you to help make it happen. We cannot do it without you.

Environmental Remediation Issues Require Immediate Attention, Best Practices

in Technology

By TOM WOODCOCK

The environmental aspect of a construction project can often be inconsistent in approach. Whether asbestos, mold or lead, it’s surprising how common it isn’t properly handled or even ignored.

The risk of an environmental issue not being corrected is by far greater than the expense of litigation, industry experts contend. Part of the problem is many owners are not aware of the need; many times, owners are not informed of an existing problem. The discovery of dangerous materials should spur a removal process, environmental remediation experts say, but this isn’t always the case. Why does this occur, and what can be done to correct it? Too many times, renovation and demolition projects may remain unchecked and construction will go forward without the problem being resolved, experts agree.

There are reasons this is occurring regularly on construction projects, according to Mike Renfroe, founder of St. Louis-based GenCorp Services, LLC, a remediation and demolition contractor.

“There are several factors to this work not being done,” Renfroe said. “These may include tradesman who are not educated on environmental requirements and miscalculating the expense of removal.”

These two factors, Renfroe said, seem to be the most common reasons environmental problems go unresolved. At times, not a single individual on the project takes any regard to the presence of mold asbestos or lead, he added.

According to Renfroe, willful negligence can result in steep fines and even jail time in some cases. Fines can exceed $10,000 per day for more egregious violations, according to Renfroe. With more than 1,000 contractors in the vicinity and a minimal number of inspectors, some contractors may opt to roll the dice and skip the environmental phase of a project. In such cases owners are completely unaware of problem at hand, yet they absorb much of the blame. This scenario is far more common than many realize, according to Renfroe.

Simple testing of a site prior to renovation or demolition can solve this problem, said Ryan Spell, vice president of Precision Analysis, Inc., an environmental testing service.

“We are often brought in after the fact and have to test a site that has an apparent issue,” said Spell. “Testing midstream is more difficult, and workers may have already been exposed to harmful matter. It’s always wiser to test before a project begins,” he added.

Though testing seems reasonable, it’s not done consistently, according to Renfroe. Both St. Louis County and the City of St. Louis employ a small number of inspectors. These inspectors are often forced to focus on larger, higher-profile projects, Renfroe said. Smaller commercial projects – such as small office facilities – and residential projects are commonly missed. “People are living and working with dangerous environmental problems in the same spaces,” Renfroe said. “Laws have been established to prevent usage of some products and determine the levels of each material that are acceptable. The big question is whose responsibility it is to make sure the environmental issue is handled properly,” he added.

That question has an interesting answer.

Owners often count on the general contractor to handle all aspects of a project. The thought process here, according to BEX Construction Services President Randy Bueckendorf, is that a contractor knows what to look for and will address it. Most general contractors see the environmental issue as the responsibility of the owner or demolition contractor, Bueckendorf said.

“The environmental and demolition contractors are the experts,” said Bueckendorf. “After checking building records, we immediately refer any potential environmental issue to an environmental contractor. If a problem is discovered, we will stop work on the spot. The GC is not in a liability position, in most cases, to deal with it internally.”

It is difficult in some instances to determine unforeseen environmental issues, according to Bueckendorf, which is all the more reason to test and consult an environmental expert. Leaving the project to chance is not a solution, he said. Communication is paramount in eliminating the concern of environmental problems. Whether existing mastic (adhesive) or the airborne asbestos is involved during demolition, determining the need for removal is central to ensuring a safe project.

The cost of removal is exponentially less costly than mid-project remediation work, Renfroe said. If the hazard isn’t detected until construction work is already in progress, completed work may need to be torn out, cleaned and then rebuilt. All that can be extremely costly.

In addition to testing, Renfroe recommends using a demolition contractor that is fluent in environmental regulations and safety codes. “Owners cannot assume that the environmental aspect of their project is being addressed on the front end,” he said. “Asking the general contractor whose responsibility the environmental will be can help determine where the liability rests. The risk is significant, but it isn’t realized till a citation is given. Then the battle over responsibility begins. Combine this with an active living or working space, and things can get dicey quickly,” said Renfroe.

Best practices suggest testing and monitoring any renovation or demolition project, experts concur. “Taking the extra step and assuring environmental issues are being dealt with is the best course of action,” Bueckendorf said. “Averting extra project cost is enticing, but the risk seems to be significant. The seemingly small percentage of projects that are tested and even cleaned is disconcerting. The majority of quality general contractors, environmental and demolition contractors are sensitive to problems that may exist. They are looking for potential problems and are keeping the best interest of the owners in mind. The problem arises when the desire to save cost overrides the safety concerns. Covering up environmental issues is a risky proposition. Banking on inspectors not having the time in their schedule to review a project can be problematic,” he added.

The environmental aspects of demolition and renovation projects require attention. In a health-conscious construction community, not addressing these issues is counter to current construction positions. “Environmental professionals across the board agree that there needs to be greater adherence,” Spell said. “Many in the general contracting community concur, too. Increasing the level of analysis can help alleviate much of the concern as well as the potential for very costly results.”

The Bleeding Edge of Technology

in Technology

By JOE BALSAROTTI

I was racking my brain trying to come up with a good topic for this edition when inspiration struck. Unfortunately, it struck at one of my client’s workplaces and with a lot of wasted time, energy and frustration.

The publisher of an LOB (line-of-business) application (some people call them vertical or industry-specific applications) contacted our client to say that a new version was available, and the publisher needed us to provide remote access for them install it. The client has a maintenance contract with this publisher; it includes any and all updates as well as installation. This is a commonplace event for specialized software – and this is a software company that has a long-established program and track record of solid tech support.

In this scenario, we are the “boots on the ground,” acting as the intermediary/translator/consultant. We let the manufacturer of the software do its thing. We all decided upon a date and time, the appointment was made and one of my techs was on-site to answer questions about the network and provide the support requested by the software publisher.

Backups were made, and the installation appeared normal. The techs from the software publisher’s company said they were satisfied and went off on their merry way.

Of course, if the story ended there, this would be an awfully short guest column.

The story didn’t end there. What actually happened was that the next morning our client called to say they were getting kicked out of the application every couple of minutes. After some basic troubleshooting, it was time to get the publisher back on the line. The publisher’s software technicians fiddled around for most of the morning; meanwhile, the client wasn’t getting work done. That afternoon, the publisher said the issue had been fixed. The client squeezed in a couple of productive hours late in the day.

Unfortunately, the next morning, the client was back on the phone, reporting that they’d features they hadn’t used the previous day and some of those either did not work as they were supposed to or just plain crashed. Again, the publisher went to work, spending the rest of the day fiddling and fooling, but to no avail. Same thing on day three. The publisher was logged in and getting nowhere while our client’s staff sat around being unproductive.

Time for a conference call. Guess what? The techs suddenly admitted that this version had only been out there for one week and that all the installs were experiencing random problems. So, our problems weren’t unique and this update “might have been put out there without adequate testing.” Ya think?

Luckily, the software publishing company has been around for a couple of decades and did have a provision for rolling back the update. The publisher brought our mutual client to a stable environment so they could all get back to working productively. That’s not how it usually happens; the ability to roll back changes is not normal practice, unfortunately.

Like many others, this publisher has pushed annual updates of its software for years – something I think is ridiculous because at this point very, very few useful features are being added to anyone’s programs. Nearly every time, they’re merely cosmetic changes so that a publisher can continue justifying that a maintenance contract is worth the expense, rather than just buying an upgrade ad hoc. In this case, it looks like the publisher was running out of days on its calendar to get the 2019 release out there and rushed a buggy, obviously untested program to its clients just so it could say there was a new version available. This publisher even went as far as to proactively contact our mutual client to schedule installs.

As of now, our client is back to using the previous version of the software, which has worked well and has been bug-free for the past year. The software publisher is still working on making the update usable. There has been no estimate from the publisher’s techs as to when a fully-tested update will be available.

Joe Balsarotti is President of Software To Go and is a 38-year veteran of the computer industry, reaching back to the days of the Apple II. He served three terms as chairman of the National Federation of Independent Business’ Missouri Leadership Council, as chairman of the Clayton, Missouri Merchant Association for a dozen years, chaired Region VII of the Federal Small Business Regulatory Fairness Board and currently serves on the Dealer Advisory Panel of the ASCII Group, an organization of nearly 1,200 independent computer and technology solution providers in North America. He can be reached at businesstech@software-to-go.com.

It’s a Long Story

in Columns/Perspective
Mike Chollet

Of all the human attributes that contribute to one’s success in life, it seems to me that curiosity is one of the most powerful. Curiosity is how we learn, though parents may sometimes lose sight of its importance under daily siege by a three-year-old armed with hundreds of questions. I was that child and while I’m sure I drove my parents crazy, I can attest to the fact that intellectual curiosity makes for a rich and interesting life.

I’m much taller now, but extreme curiosity still drives me on a daily basis. I am a voracious reader with a special affinity for history, particularly American history from the 1800’s forward. Stories of the industrial titans of the late 1800’s and early 1900’s—Ford, Astor, Vanderbilt, Carnegie, Morgan—illustrate the American connection and struggle between industrialists and the rise of the labor movement in our country. The two forces are inextricably connected, and each could not have existed without the other. It’s an ongoing story of the need to counteract unchecked power with moral imperative.

St. Louis is a town that offers its own, unique, perspective on history. It is, literally, the jumping off point for the Americanization of the bulk of our country. Proximity to the confluence of four great rivers systems made St. Louis the center of north American civilization for a good part of our country’s history. I think it’s important to always remember where we came from and who we are.

Though ownership has changed for some large businesses and others have left over the years, there are many companies, large and small, who remain rooted here, proudly serving the St. Louis community. Each plays a role in envisioning and building a future for the city we call home and each, whether fledgling or giant, will leave their stamp on the history of St. Louis in some way.

Thomas J. Finan, Jr., the founder of St. Louis Construction News and Review magazine, wasn’t an architect or an engineer or a contractor. He wasn’t even particularly handy, but he was curious about the untapped potential in a city he loved. He took great pride in honoring the contributions so many of you have made to progress in St. Louis. He was passionate about documenting that important work and he believed in the immense power of community and collaboration. Next year will mark the 50th year of this magazine’s existence—a milestone our founder likely never imagined possible. All of us, team members past and present, who work together to bring each issue of St. Louis CNR to life, are immensely proud to be a part of his noble endeavor.

St. Louis CNR was established in 1969 to serve as “The Voice for the St. Louis Construction Industry” and our goal is to continue bringing you stories that inform and inspire. In our March-April 2019 issue, we will celebrate our half-century mark by featuring the people and companies who have contributed to the history and growth of St. Louis through their roles in the construction industry. CNR Editor Kerry Smith, the newest member of our team, is excited to get started telling your stories.

Landowner Awarded Punitive Damages, Attorney Fees Against Contractor, Utility Company

in Columns/Law
James R. Keller

By JAMES R. KELLER

Missouri’s Southern District Court of Appeals recently upheld a jury verdict and court judgment in favor of the landlord and against Carroll Electric Cooperative Corp. for $12,224 in actual damages, $75,000 in punitive damages and $59,456 in attorney’s fees. The appellate court also upheld a separate judgment for the same amount in actual damages – but not punitive damages – against Seven Valleys Construction Co.

The case is Bare v. Carroll Electric Cooperative Corporation and Seven Valleys Construction Company, 2018 WL 1281114, decided March 13.

The judgment against Carroll Electric and Seven Valleys was for common-law trespass. The appellate court decided there was sufficient evidence to support the jury’s verdicts and the trial court’s judgments.

Carroll Electric had hired Seven Valleys to clear a right-of-way and pile resulting severed trees and brush on the edge of the right-of-way. Steven and Suzanne Bare were the co-trustees/owners of the land.

They granted an easement to Carroll Electric to clear and keep clear the right-of-way. The easement permitted the removal of trees and other obstacles outside of the right-of-way that were tall enough to interfere with transmission lines.

The landowner was concerned that the language in the easement contract seemed vague. The field service supervisor for Carroll Electric told the landowner that the language was in the easement contract so that Carroll Electric could “take danger trees.”

The landlord wanted this language removed. Carroll Electric’s representative would not do this but also said, “You have nothing to worry about.”

Carroll Electric’s design engineer had assured the landowner that the tree-clearing project could be done within 100 feet, the width of the right-of-way. Carroll Electric’s field service supervisor also told the landowner that if any damage occurred to landowner’s property beyond the right-of-way, then the landowner should “make a written claim to Carroll Electric and they would take care of restoring and repairing the damage.”

Without these promises, the landowner testified that she would not have signed the easement contract. The easement contract was one piece of paper. It guaranteed payment of $9,060 to the landowner for the easement.

The easement contract noted that logs would be left on the edge of the right-of-way for the landowner.

At trial, the Court received into evidence the one-page easement contract. It contained an additional hand-written note that stated: “Brush also to be left pushed off edge of right-of-way.”

Suzanne Bare testified at trial that she did not recognize the handwriting. She said the hand-written note was not on the easement contract when she signed it.

Carroll Electric’s field service supervisor testified that he added the hand-written note and it was on the easement before Suzanne Bare signed it.

The Southern District noted that the jury was entitled to believe or disbelief part or all of the testimony of any witness.

Steven Bare testified that he told Seven Valleys’ supervisor “not to clear anything wider than 100 feet.”

After the clearing crew had moved past the landowner’s property, the Bares went on an out-of-town trip. When they returned three days later, they discovered that a large area of their property had been bulldozed on what was previously a “fully wooded” section of their land.  In total, Seven Valleys’ work crew had removed 46 trees.

Contrary to the 100-foot limitation, Seven Valleys piled trees and lumber on the landowner’s property. Some of the trees had been placed on top of landowner’s fence, damaging the fence.  The landowner also discovered that other trees outside the boundary of the easement had been cut.

One of the issues on appeal was whether Carroll Electric controlled or had the right to control the activities of Seven Valleys. The appellate court noted that Seven Valleys’ contract permitted Carroll Electric to remove any employee of Seven Valleys. Carroll Electric could also force Seven Valleys to add employees to the project.

Further, Carroll Electric’s supervisor not only inspected Seven Valleys’ work, but he had the ability to correct work. The Southern District decided that there was substantial evidence supporting a finding that Carroll Electric’s control over Seven Valleys’ conduct “produced a trespass.”

The appellate court also considered whether the trial court errored by instructing the jury on punitive damages.

The Southern District concluded that the jury could reasonably find that Carroll Electric’s field service supervisor had added the hand-written note on the easement after it was signed by the landowner “to make it appear that the landowner had agreed to something that it had actually rejected.”

The Southern District further noted that he told Carroll Electric’s supervisor that he did not want any trees cleared beyond what they had agreed to in the easement. The supervisor replied that he would take any tree on landowner’s property that he wished.

With this evidence, the appellate court concluded that a reasonable juror could find that Carroll Electric’s conduct was outrageous by demonstrating a complete indifference to or a conscious disregard for landowner’s rights.

This is the legal standard to support an award of punitive damages under Missouri law. The Southern District, based on the standard and the evidence it considered, affirmed the award of punitive damages.

The Southern District also upheld the award of attorney fees pursuant to a Missouri statute. The statute provides that if a property owner prevails in an action for trespass against a rural electric cooperative, such property owner may be awarded reasonable attorneys’ fees, costs and expenses.

This statute also entitled the landowner to recover legal fees for the appeal including research in preparation of appellate briefs.

The appellate court sent the case back to the trial court to consider the reasonableness of the request for attorney fees and costs incurred by the appeal.

James R. Keller is counsel with Sandberg Phoenix & von Gontard P.C. where he concentrates his practice on construction law, complex business disputes, real estate and alternative dispute resolution. He also is an arbitrator and a mediator. Keller can be reached at (314) 446-4285 or jkeller@sandbergphoenix.com.

Five Essential Lessons to be Learned When It Goes Very, Very Wrong

in Columns/Technology
Joe Balsarotti

By JOE BALSAROTTI

As I write this column, my staff is in the fourth week of a nightmare scenario for a technology provider. One of our long-time vendors, who provided email and web hosting services, gave 30-day notice that the company was closing down. This followed a series of incidents in short succession of one client’s email being hacked, his tech making a grave error in an attempt to recover data and as a result, the destruction of a number of other clients’ data.

Luckily all but one client did get their data back, but significant downtime resulted for these businesses. Many of those affected by the shuttering of the vendor are our clients, but a number of them were not. Nevertheless, we offered to assist anyone who wanted help during the transition.

Through our industry associations, I’ve always kept a list of trusted colleagues who provide products and services that are complementary to ours. I’ve also kept a list of trusted colleagues who could act as a backup if we needed help. That planning paid off. We were able to work with a company who provided similar services and had the resources to be able to onboard those who were stranded in the digital sea before the looming deadline.

The process of switching all these companies over has been daunting. Each client’s setup is a little different. Some just use email, others depend upon their websites and many utilize both. This was about as close to a nightmare scenario as one can get, except that there was at least a month’s notice.

Working through all of this brought to light many important points.

First off, as we’ve covered before, do you own your data? A handful of the clients had their website created by that vendor and were never given access to it, nor were they given a copy of their data. Unfortunately, that means they will have to pay to have a new website designed for them. It’s not something they were expecting or budgeting for. And until the new site is completed, they don’t have a presence on the web.

Secondly, moving email providers is about the most labor-intensive project one can have. Someone has to touch not only every computer, but also every email and user account on each computer. Local data needs to be backed up, changes made, connections tested and data restored. With the volume of email some users keep, this can be a two- to three-hour process just for one account. Now multiply that by about 800 and you comprehend the scope of the task belonging not only to my team, but to the new datacenter and its staff as well.

We did our best to prioritize those who needed 24/7 access to their email, those who could do with checking through webmail during a transition and a select few who welcomed a day or two of digital peace and quiet.

“Always in motion, this project is,” paraphrasing Yoda. Like any major project your business takes on, making sure you’ve accounted for how much time is spent on each client is essential. With so many separate clients and each user needing attention, it’s easy to lose track as techs get sucked into a rabbit hole resolving one problem or another. Organization is key. Even if it starts to fail under the stress, at least there is a framework to keep the project moving forward.

The third point that reared its ugly head was documentation, or the complete lack of it at many clients. The vendor dealt with these clients directly. And although we often acted as a consultant or even a translator between them, we were not privy to the transactions between them. Many clients were sent scrambling to find account numbers, passwords and to track down who controlled (or even owned) domain names. Getting in contact with the website designers was nearly impossible, as many sites were old and their designers had long since moved on.

The fourth point brought to light was the lack of attention to websites. With only a handful of exceptions, all these clients’ sites were running drastically out-of-date software, security was nonexistent and the web designers who (as we’ve discussed in this column before) should have been doing ongoing maintenance on the sites, never even bothered to discuss it with the clients, let alone sell them on it. One of the affected sites was infected with a virus. As such, we could not download the client’s data because our security systems prevented it, as they should have. If we would have had another month to go through the process, we would have been able to save it, but the cost of cleaning and updating data just to be able to transfer it probably exceeds what designing from scratch would cost.

Lastly, misplaced trust in the cloud was amazing to me. As many times as we preach to clients that they must make backups, the number of businesses who made the faulty assumption that the vendor would have everything available forever – and they didn’t have to take any precautions themselves – was astonishing. The initial problem this vendor had was exasperated by a technician’s error, which then revealed that their assurances of data security were not as they had been portrayed.

The moral of this story – which continues to play out – is that with organization and a little planning, your business can survive a major disruption such as losing a key vendor. There will be a price to pay, however. Lost productivity, unforeseen costs and the potential of lost business are givens. How impactful this can be to your business comes down to how much time and effort you’ve put into being prepared.

Joe Balsarotti is president of Software To Go and is a 38-year veteran of the computer industry, reaching back to the days of the Apple II. He served three terms as chairman of the National Federation of Independent Business’ Missouri Leadership Council, as chairman of the Clayton, Missouri Merchant Association for a dozen years, chaired Region VII of the Federal Small Business Regulatory Fairness Board and currently serves on the Dealer Advisory Panel of the ASCII Group, an organization of nearly 1,200 independent computer and technology solution providers in North America. He can be reached at joe.balsarotti@software-to-go.com.

Five Must-Haves to Make Your Good Website into a Great Website

in Marketing
Stephanie Woodcock

By STEPHANIE WOODCOCK

Before we start with the list of must-haves for a good website, let me preface that first and foremost a website should be responsive and mobile friendly. Studies show that more than 50 percent of all websites and emails are opened on mobile devices; if your website is not responsive and mobile-friendly, stop reading now and find a web designer.

The next five points do not matter until you have a responsive site that people can read on their mobile devices. Take a look at your website using your smartphone. If the street address or services or pictures are illegible or too small, chances are it’s not mobile-friendly. You should not have to place your forefinger and thumb on the screen to enlarge the street address. A responsive site organizes the information on your website to best fit whatever screen on which it is displaying – desktop, smartphone or iPad.

Now we can begin. Here are five must-haves for a good, if not great, website:

1 – Multiple methods of contact easily visible and located in the expected places.

Potential customers are on your website – hooray – and obviously the next step is that you’d like to connect with them. Make this as simple for them as possible by making your phone number, address (linked and coded to map/directions) and email address easy to find. These items are standard in the footer and/or headers of a website, and this is where people will look for them, in addition to the “contact us” page of your website.

2 – Clear, concise content.

No one knows your industry like you. Now that I’ve landed on your website, please don’t bury me in industry jargon and terminology that I don’t understand. Your home page should be informative, concise and user-friendly. It should not be like reading IKEA directions (sorry, IKEA). You should be using layman terms to simply describe your product and services so that people feel like they can call you and have a conversation with you on their terms. Customers are not impressed by your wealth of knowledge and expertise in the field. They just want you to back up your work. They want to understand the gist of how you can help them and make their lives easier. Don’t be the hero in the story of what you do. Let your customers be the hero and you the guide.

3 – Unique, fresh content.

This is for all you Google-happy folks out there. Google crawls your page when new content is uploaded, hence the popularity of blogs on business websites. And Google is grading your content. Pencils down: Do your meta tags and keywords match your content? Is your content borrowed from another similar website? (That’s a big no-no.) Has your content been updated within the past 90 days? These three things heavily affect your search rankings. While many B2B companies in the construction industry don’t necessarily get their customers from Google searches, it is still important to remember and consider. Google is a giant with which to be reckoned. In order to play nice with Google, you need to have fresh, relevant content for your industry. A post once a month related to your services is a great place to start; this can easily be uploaded by office staff on the back end of a website built on a CMS (content management system) platform.

4 – Appropriate use of color and images.

I have seen many websites that look like a cookie cutter website with a logo attached. This is not a brand. This is a sad excuse for a website. Where is your identity? For what does your company stand? A branded website with strong sense of style, imagery and color helps set you apart from the competition and supports your sales effort by evoking a professional, signature brand. You don’t want to be known as the generic company that’s been around for a long time with that great salesperson. You want to be known for your brand. A brand can do a lot of things. It can make you look bigger than what you are. It can attract the right kind of customers. It can support a sales push. It can enhance work ethic of your company’s culture. A brand is so much more than looks, and it starts with your website. More so today than ever, a digital identity is crucial for brand success.

Lastly, and most importantly:

5 – A call to action.

You have a potential customer on your website! Now what? What do you want him or her to do next? Customers do not take action until they are challenged to take action. Unless we are bold in our calls to action, we will be ignored. We assume that we want them to buy from us, but that’s not correct. Customers have to be pushed into action. There is power in clarity. Make sure your site flows in a way that leads them to the action you want them to take, whether that is simply to learn more about your business or to pick up the phone and call you. Do you believe in your product? Customers aren’t looking for brands that are filled with doubt. They are looking for brands that have solutions to their problems. There are two kinds of calls to action: a direct call to action and a transitional call to action. For a good example of a direct call to action, go to the website of your favorite pizza chain. On the front page there is a call to action to get you to place an order such as pictures of delicious (albeit greasy) pizza. You’ll likely also find easy-to-click “order now” buttons. It will push you through the order, guide you step by step and try to upsell you soda and garlic bread.

As a brand, it’s our job to pursue our customers in a very similar fashion. We are the ones who need to take the initiative. Be bold and be direct when it comes to your website. State your purpose, have direction, include plenty of call to action buttons and methods to reach you, and support this clear messaging with a strong brand, logo, colors, imagery and easy navigation.

A good website can make or break a company. Let’s make yours.

Stephanie Woodcock is president of Seal the Deal Too, a St. Louis-based marketing, creative & communications firm. She can be reached at stephanie@sealthedealtoo.com.

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